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On Hart's Ways: Law as Reason and as Fact

Oxford Legal Studies Research Paper No. 07/2008

Notre Dame Legal Studies Paper No. 08-06

American Journal of Jurisprudence, Vol. 52, pp. 25-53, 2007

THE LEGACY OF H.L.A. HART, Matthew Kramer, ed., Oxford University Press, 2008

33 Pages Posted: 4 Mar 2008  

John Finnis

Notre Dame Law School; University of Oxford - Faculty of Law

Abstract

This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept or theory of law that so truncated its account of the juridical, and of the sources of legal reasoning, that it could provide little or no guidance in situations of legal difficulty. The paper suggests that these flaws result, to some significant extent, from the skeptical doubts about morality evident particularly in his later work. All this has implications for the kind of approach to law and legal theory often self-described as positivist.

Suggested Citation

Finnis, John, On Hart's Ways: Law as Reason and as Fact. Oxford Legal Studies Research Paper No. 07/2008; Notre Dame Legal Studies Paper No. 08-06; American Journal of Jurisprudence, Vol. 52, pp. 25-53, 2007; THE LEGACY OF H.L.A. HART, Matthew Kramer, ed., Oxford University Press, 2008. Available at SSRN: https://ssrn.com/abstract=1100170

John M. Finnis (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

University of Oxford - Faculty of Law ( email )

University College
High Street
Oxford, England OX1 4BH
United Kingdom

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